When To Use The AB 5 ABC Test Vs The Borello Test For Worker, Professional, Or Occupation

No. While the ABC test is the applicable test for most workers, for some occupations and industries Labor Code sections 2775 et seq. apply the Borello multifactor test, described above.

For some occupations, the Borello test applies without further requirements. However, for other occupations and industries, the Borello test applies instead of the ABC test only after the hiring entity satisfies other requirements first.

Finally, for certain real estate licensees and repossession agencies, standards under the California Business and Professions Code will continue to apply.

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1. Occupations where the Borello test applies instead of the ABC test under Labor Code sections 2775 et seq.:

2. Real Estate Agents special rules under Labor Code section 2778(b) require examination under the Business and Professions Code:

3. Repossession Agent special rules under Labor Code section 2778(b) require examination under the Business and Professions Code:

Occupations where the Borello test applies instead of the ABC test under Labor Code sections 2775 et seq.:

Certain occupations in connection with creating, marketing, promoting, or distributing sound recordings or musical compositions

Certain licensed insurance agents, brokers, and persons who provide underwriting inspections, premium audits, risk management, or loss control work for the insurance and financial service industries

Certain licensed physicians, surgeons, dentists, podiatrists, psychologists, or veterinarians

Certain licensed attorneys, architects, landscape architects, engineers, private investigators and accountants

Certain registered securities broker-dealers or investment advisers or their agents and representatives

Certain direct salespersons

Certain manufactured housing salespersons

Certain licensed commercial fishers (only through December 31, 2022 unless extended by the Legislature)

Certain newspaper distributors or carriers (only through December 31, 2021 unless extended by the Legislature)

Certain persons engaged by an international exchange visitor program

Certain competition judges

Certain home inspectors, as defined in Section 7195 of the Business and Professions Code, and subject to the provisions of Chapter 9.3 (commencing with Section 7195) of Division 3 of that code.

Occupations or contracting relationships where Labor Code sections 2775 et seq. requires that additional requirements must first be met in order to use the Borello test instead of the ABC test:

Certain professional services contracts for marketing; human resources administration; travel agents; graphic design; grant writers; fine artists; enrolled agents licensed to practice before the IRS; payment processing agents; still photographers / photojournalists; videographers; photo editors to a digital content aggregator; freelance writers, translators, editors, copy editors, illustrators, or newspaper cartoonists; content contributors, advisors, producers, narrators, or cartographers for a journal, book, periodical, evaluation, other publication or educational, academic, or instructional work in any format or media; licensed barbers, cosmetologists, electrologists, estheticians, or manicurists (manicurists only through December 31, 2021); specialized performing arts Master Class Instructors, appraisers, registered professional foresters, and data aggregators, as defined. Borello applies to determine whether the individual is an employee of the hiring entity if initial requirements are met.

Relationships between two individuals working on a single engagement event, defined as a stand-alone non-recurring event in a single location, or a series of events in the same location no more than once a week. Borello applies if initial requirements are met.

Certain individuals performing work under a subcontract in the construction industry, including construction trucking (with certain specific conditions applicable to construction trucking only through December 31, 2021). Borello and Labor Code section 2750.5 apply to determine whether the individual is an employee of the contractor if initial requirements are met.

Certain service providers who are referred to customers through referral agencies to provide services including, but not limited to, graphic design, web design, photography, tutoring, consulting, youth sports coaching, caddying, wedding or event planning, services provided by wedding and event vendors, minor home repair, moving, errands, furniture assembly, animal services, dog walking, dog grooming, picture hanging, pool cleaning, yard cleanup, and interpreting. Borello applies to determine whether the service provider is an employee of the referral agency if initial requirements are met.
- The following services are excluded: services provided in an industry designated as a high hazard industry, janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or construction services other than minor home repair.

Certain individuals performing services pursuant to a third party’s contract with a motor club to provide motor club services. Borello applies to determine whether the individual is an employee of the motor club if initial requirements are met.

Certain bona fide business-to-business contracting relationships. Borello applies to determine whether the business providing services is an employee of the business contracting for the services if initial requirements are met.

Real Estate Agents special rules under Labor Code section 2778(b) require examination under the Business and Professions Code:

Certain real estate licensees, for whom the test of employee or independent contractor status is governed by section 10032(b) of the Business and Professions Code. (If that section is not applicable, then Borello is the applicable test for purposes of the Labor Code, except ABC will be the applicable test for purposes of workers’ compensation as of July 1, 2020.)

Repossession Agent special rules under Labor Code section 2778(b) require examination under the Business and Professions Code:

Certain repossession agencies, for which the determination of employee or independent contractor status is governed by Section 7500.2 of the Business and Professions Code.

The exemptions from the ABC test for certain industries, occupations, or contracting relationships may involve some complicated rules and criteria which are not set forth above. Employers and workers should seek independent advice and counsel if they have questions about the applicability of any exemption to their particular case.

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